From Seventh Circuit Judge Frank Easterbrook's opinion concerning the denial of rehearing en banc in Kilborn v. Amiridis (see this post for the panel decision, which took a contrary view):
"It is the business of a university to provide that atmosphere which is most conducive to speculation, experiment and creation. It is an atmosphere in which there prevail the four essential freedoms of a university—to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study." Sweezy v. New Hampshire (1957) (Frankfurter & Harlan, JJ., concurring) (quoting from an academic report). Sweezy introduced the idea of academic freedom to the pages of the United States Reports. Although a majority did not state clearly who possesses that freedom, the views of Justices Frankfurter and Harlan have persuaded many other federal judges that the university itself is entitled to freedom from outside control, even if a faculty member seeks to enlist the aid of non-academic governmental actors. See, e.g., Webb v. Ball State University (7th Cir. 1999); Wozniak v. Adesida (7th Cir. 2019); Urofsky v. Gilmore (4th Cir. 2000) (en banc).
A university's ability to evaluate and respond to faculty members' speech is essential to the educational enterprise. Think of tenure: A university assesses a professor's quality of research and writing (and choice of subject matter) and necessarily makes decisions based on the content and viewpoint of speech. A chemist who writes excellent political commentary but neglects scientific data and analysis can't expect tenure. A biologist who devotes his career to elaborating the ideas of T.D. Lysenko can't expect tenure.
Think of teaching: Every university assigns subjects (a professor of philology can't insist on teaching political theory) and approaches (a professor of evolutionary biology who has experienced a religious conversion can't denounce Darwin and embrace creationism). A university may demand that exams cover given topics and be graded on a curve. Successful professors receive raises and timeservers do not—though "success" depends on speech that occurs in class and in scholarly journals. And so on. Evaluation of every teacher's speech is an essential part of academic administration, and deans rather than jurors should resolve disputes about these matters.
